Medical Malpractice Suit as a

Specialized Area of Tort Law

The claim for damages is based on the petitioning doctors’ negligence in diagnosing and treating the
deceased Edmer, the child of the respondent. It is a medical malpractice suit, an action available to
victims to redress a wrong committed by medical professionals who caused bodily harm to, or the
death of, a patient.  As the term is used, the suit is brought whenever a medical practitioner or
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health care provider fails to meet the standards demanded by his profession, or deviates from this
standard, and causes injury to the patient.

To successfully pursue a medical malpractice suit, the plaintiff (in this case, the deceased patient’s
heir) must prove that the doctor either failed to do what a reasonably prudent doctor would
have done, or did what a reasonably prudent doctor would not have done; and the act or
omission had caused injury to the patient.  The patient’s heir/s bears the burden of proving
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his/her cause of action.

The Elements of a Medical Malpractice Suit

The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate causation.

Duty refers to the standard of behavior that imposes restrictions on one's conduct. It requires proof
of professional relationship between the physician and the patient. A physician-patient
relationship is created when a patient engages the services of a physician, and the latter
accepts or agrees to provide care to the patient. The mere fact that an individual approaches
a physician and seeks diagnosis, advice or treatment does not create the duty of care unless
the physician agrees.

The consent does not always need to be express. In the absence of an express agreement, it
may be implied from the physician’s affirmative action to diagnose and/or treat a patient, or
in his participation in such diagnosis and/or treatment. The usual illustration would be the
case of a patient who goes to a hospital or a clinic, and is examined and treated by the
doctor.

Once a physician-patient relationship is established, the legal duty of care follows. The
doctor accordingly becomes duty-bound to use at least the same standard of care that a
reasonably competent/prudent doctor would use to treat a medical condition under similar
circumstances.

a physician-patient relationship was established when they examined the patient, and later
assured the mother that everything was fine.

the rendering of an opinion in the course of the patient’s care as the doctor’s assent to the
physician-patient relationship. It ruled that the relationship was formed because of the
doctor’s affirmative action.
Breach of duty occurs when the doctor fails to comply with, or improperly performs his
duties under professional standards. This determination is both factual and legal, and is
specific to each individual case.

Standard of Care and Breach of Duty

A determination of whether or not the petitioning doctors met the required standard of care
involves a question of mixed fact and law; it is factual as medical negligence cases are highly
technical in nature, requiring the presentation of expert witnesses to provide guidance to the
court on matters clearly falling within the domain of medical science, and legal, insofar as the
Court, after evaluating the expert testimonies, and guided by medical literature, learned
treatises, and its fund of common knowledge, ultimately determines whether breach of duty
took place.

If the patient, as a result of the breach of duty, is injured in body or in health, actionable
malpractice is committed, entitling the patient to damages.

Even assuming that Edmer’s symptoms completely coincided with the diagnosis of bronchopneumonia (so
that this diagnosis could not be considered "wrong"), we still find Dr. Casumpang guilty of negligence.

First, we emphasize that we do not decide the correctness of a doctor’s diagnosis, or the accuracy of the
medical findings and treatment. Our duty in medical malpractice cases is to decide – based on the evidence
adduced and expert opinion presented– whether a breach of duty took place.

Second, we clarify that a wrong diagnosis is not by itself medical malpractice.65 Physicians are generally not
liable for damages resulting from a bona fide error of judgment. Nonetheless, when the physician’s
erroneous diagnosis was the result of negligent conduct (e.g., neglect of medical history, failure to order the
appropriate tests, failure to recognize symptoms), it becomes an evidence of medical malpractice.

Third, we also note that medicine is not an exact science;66 and doctors, or even specialists, are not
expected to give a 100% accurate diagnosis in treating patients who come to their clinic for consultations.
Error is possible as the exercise of judgment is called for in considering and reading the exhibited
symptoms, the results of tests, and in arriving at definitive conclusions. But in doing all these, the doctor
must have acted according to acceptable medical practice standards.

Attending Physician vs Resident Physician

In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine licensed to
practice in the Philippines and who would like to pursue a particular specialty. They are usually the front line
doctors responsible for the first contact with the patient. During the scope of the residency program, resident
physicians (or "residents") function under the supervision of attending physicians or of the hospital’s
teaching staff. Under this arrangement, residents operate merely as subordinates who usually defer to the
attending physician on the decision to be made and on the action to be taken.

The attending physician, on the other hand, is primarily responsible for managing the resident’s exercise of
duties. While attending and resident physicians share the collective responsibility to deliver safe and
appropriate care to the patients, it is the attending physician who assumes the principal responsibility of
patient care. Because he/she exercises a supervisory role over the resident, and is ultimately responsible for
the diagnosis and treatment of the patient, the standards applicable to and the liability of the resident for
medical malpractice is theoretically less than that of the attending physician.

These relative burdens and distinctions, however, do not translate to immunity from the legal duty of care for
residents, or from the responsibility arising from their own negligent act.
 In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of care in medical
malpractice cases involving first-year residents was that of a reasonably prudent physician and not that of
interns. According to Jenkins:

It is clear that the standard of care required of physicians is not an individualized one but of physicians in
general in the community. In order to establish medical malpractice, it must be shown by a preponderance of
the evidence that a physician did some particular thing or things that a physician or surgeon of ordinary skill,
care and diligence would not have done under like or similar conditions or circumstances, or that he failed or
omitted to do some particular thing or things that a physician or surgeon of ordinary skill, care and diligence
would have done under like or similar conditions or circumstances, and that the inquiry complained of was
the direct result of such doing or failing to do such thing or things.

We note that the standard of instruction given by the court was indeed a proper one. It clearly informed the
jury that the medical care required is that of reasonably careful physicians or hospital emergency room
operators, not of interns or residents. [Emphasis supplied]

We find that Dr. Sanga was not independently negligent. Although she had greater patient exposure, and
was subject to the same standard of care applicable to attending physicians, we believe that a finding of
negligence should also depend on several competing factors, among them, her authority to make her own
diagnosis, the degree of supervision of the attending physician over her, and the shared responsibility
between her and the attending physicians.

To successfully claim damages, the patient must lastly prove the causal relation between the
negligence and the injury. This connection must be direct, natural, and should be unbroken
by any intervening efficient causes. In other words, the negligence must be the proximate
cause of the injury.

The injury or damage is proximately caused by the physician’s negligence when it appears,
based on the evidence and the expert testimony, that the negligence played an integral part
in causing the injury or damage, and that the injury or damage was either a direct result, or a
reasonably probable consequence of the physician’s negligence.

Criteria in Qualifying as an Expert Witness

The competence of an expert witness is a matter for the trial court to decide upon in the
exercise of its discretion. The test of qualification is necessarily a relative one, depending
upon the subject matter of the investigation, and the fitness of the expert witness. In our
jurisdiction, the criterion remains to be the expert witness’ special knowledge experience and
practical training that qualify him/her to explain highly technical medical matters to the Court.

In Ramos v. Court of Appeals,  the Court found the expert witness, who is a pulmonologist,
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not qualified to testify on the field of anesthesiology. Similarly, in Cereno v. Court of

expert witness whose specialty was anesthesiology, and concluded that an anesthesiologist
cannot be considered an expert in the field of surgery or even in surgical practices and
diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician
but a practicing physician who specializes in pathology.  He likewise does not possess any
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formal residency training in pediatrics. Nonetheless, both the lower courts found his
knowledge acquired through study and practical experience sufficient to advance an expert
opinion on dengue-related cases.

Jurisprudence states that the witnesses may be disqualified to testify as an expert based on
their incapacity to shed light on the standard of cares that must be observed by the
defendant-physicians; that the expert witnesses’ specialties do not match the physicians’
practice area only constituted, at most, one of the considerations that should not be taken
out of context. After all, the sole function of a medical expert witness, regardless of his/her
specialty, is to afford assistance to the courts on medical matters, and to explain the medical
facts in issue.

There must be reasonable indication that the expert witness possesses a sufficient familiarity
with the standard of care applicable to the accused-physician’s specialties

It is well established that "the testimony of a qualified medical doctor cannot be excluded
simply because he is not a specialist x x x." The matter of "x x x training and specialization of
the witness goes to the weight rather than admissibility x x x."

It is the specialist’s knowledge of the requisite subject matter, rather than his/her specialty
that determines his/her qualification to testify.

To qualify a witness as a medical expert, it must be shown that the witness (1) has the
required professional knowledge, learning and skill of the subject under inquiry sufficient to
qualify him to speak with authority on the subject; and (2) is familiar with the standard
required of a physician under similar circumstances; where a witness has disclosed
sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the
degree of his knowledge goes more to the weight of the evidence than to its admissibility.

Nor is it critical whether a medical expert is a general practitioner or a specialist so long as

The witness’ familiarity, and not the classification by title or specialty, which should control
issues regarding the expert witness’ qualifications:

The general rule as to expert testimony in medical malpractice actions is that "a specialist in
a particular branch within a profession will not be required." Most courts allow a doctor to
testify if they are satisfied of his familiarity with the standards of a specialty, though he may
not practice the specialty himself. One court explained that "it is the scope of the witness’
knowledge and not the artificial classification by title that should govern the threshold
question of admissibility.
HOSPITAL LIABILITY

The elements of the action have been set out as follows:

For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the
hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the
individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the
acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital
had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of
the hospital or its agent, consistent with ordinary care and prudence.

The two factors in determining hospital liability as follows:

The first factor focuses on the hospital’s manifestations and is sometimes described as an inquiry
whether the hospital acted in a manner which would lead a reasonable person to conclude that the
individual who was alleged to be negligent was an employee or agent of the hospital. In this regard,
the hospital need not make express representations to the patient that the treating physician is an
employee of the hospital; rather a representation may be general and implied.

The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on
whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with
ordinary care and prudence.

In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or an
independent contractor) providing care at the hospital if the plaintiff can prove these two factors: first,
the hospital’s manifestations; and second, the patient’s reliance.

It involves an inquiry on whether the hospital acted in a manner that would lead a reasonable person
to conclude that the individual alleged to be negligent was an employee or agent of the hospital. As
pointed out in Nogales, the hospital need not make express representations to the patient that the
physician or independent contractor is an employee of the hospital; representation may be general
and implied.

the hospital, by providing emergency room care and by failing to advise patients that they were
being treated by the hospital’s agent and not its employee, has created the appearance of agency;
and;

patients entering the hospital through the emergency room, could properly assume that the treating
doctors and staff of the hospital were acting on its behalf.1âwphi1

In this case, the court considered the act of the hospital of holding itself out as provider of complete
medical care, and considered the hospital to have impliedly created the appearance of authority.

It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the hospital or its
agent, consistent with ordinary care and prudence.
the important consideration in determining the patient’s reliance is: whether the plaintiff is seeking
care from the hospital itself or whether the plaintiff is looking to the hospital merely as a place for
his/her personal physician to provide medical care. Thus, this requirement is deemed satisfied if the
plaintiff can prove that he/she relied upon the hospital to provide care and treatment, rather than
upon a specific physician. In this case, we shall limit the determination of the hospital’s apparent
authority to Dr. Casumpang, in view of our finding that Dr. Sanga is not liable for negligence.

We now discuss the liability of the hospital.

The respondent submits that SJDH should not only be held vicariously liable for the petitioning
doctors’ negligence but also for its own negligence. He claims that SJDH fell short of its duty of
providing its patients with the necessary facilities and equipment

SJDH on the other hand disclaims liability by claiming that the petitioning doctors are not its
employees but are mere consultants and independent contractors.

The hospital’s liability not on the basis of Article 2180 of the Civil Code, but on the basis of the
doctrine of apparent authority or agency by estoppel.

There is No Employer-Employee Relationship Between SJDH and the Petitioning Doctors

In determining whether an employer-employee relationship exists between the parties, the following
elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the
power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to
be used in reaching such an end.

Control, which is the most crucial among the elements, is not present in this case.

Based on the records, no evidence exists showing that SJDH exercised any degree of control over
the means, methods of procedure and manner by which the petitioning doctors conducted and
performed their medical profession. SJDH did not control their diagnosis and treatment. Likewise, no
evidence was presented to show that SJDH monitored, supervised, or directed the petitioning
doctors in the treatment and management of Edmer’s case. In these lights, the petitioning doctors
were not employees of SJDH, but were mere independent contractors.

Despite the absence of employer-employee relationship between SJDH and the petitioning doctors,
SJDH is not free from liability.

As a rule, hospitals are not liable for the negligence of its independent contractors. However, it may
be found liable if the physician or independent contractor acts as an ostensible agent of the hospital.
This exception is also known as the "doctrine of apparent authority."

Under the doctrine of apparent authority, hospitals could be found vicariously liable for the
negligence of an independent contractor:

Therefore, we hold that, under the doctrine of apparent authority, a hospital can be held vicariously
liable for the negligent acts of a physician providing care at the hospital, regardless of whether the
physician is an independent contractor, unless the patient knows, or should have known, that the
physician is an independent contractor.